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Have you ever come across an NDIA decision that you were not happy with? Join the club; we have T-Shirts and our very own Facebook page. When in this situation you have two options: a) call Today Tonight or b) support your customer through the review process.
Individuals and service providers alike find going to battle with an enormous, bureaucratic beast like the NDIA intimidating. You feel like David going up against Goliath, Harry Potter against Voldemort, and Bilbo Baggins against a Dragon (? I’m not sure, those movies were obscenely long). However, at the end of the day, you have something none of these characters did- a sound knowledge of the review processes outlined in the NDIS Act.
Before jumping into a review, it is important to consider the following three questions:
- Is a decision reviewable?
- What does the review process involve?
- Is a review in the Participant’s best interest?
Is the decision reviewable?
The answer to this question should be pretty straightforward. Section 99 of the Act details which decisions are reviewable. It is a really long list, with has many points as there are letters of the alphabet. Because this aims to be a short article, so I am going to trust in your ability to find Section 99 on Page 84. But some highlights include: decisions regarding eligibility, funded supports and services provider registration.
Participants can request that their goals are changed at any time, but a review of funded supports is more complex. The Agency can choose not to review a Plan, so it will help a Participant’s case if they have a strong reason for review, such as change of circumstances, new goals or if their support needs are not being met.
What does the review process involve?
The review process is outlined in Section 100. A person directly affected by a decision has three months to request a review. The first step is an internal review within the Agency, conducted by someone not connected with the original decision. At this stage, the Agency decides whether or not they will stand their ground. If they do, and the person is still not happy with the decision, then they have 28 days to request an Administrate Appeals Tribunal (AAT) review. In other words- see you in court.
The AAT will try to see if an agreement can be reached between the NDIA and the affected party. If the two parties cannot see eye-to-eye, then the case will go to a hearing. Think Judge Judy, except different in every possible way.
At the hearing, an AAT Member (or in some cases, 2-3 Members) will ask both sides what outcome they are looking for and hear applicable evidence. Relevant documents need to be submitted 14 days prior. If you are going into a hearing, be sure to put that reminder in your calendar. In most cases, it will not be necessary to call witness. However, either party can request witnesses to aide their case.
The AAT Member will be determining whether the decision made by the Agency was lawful. They will consider relevant sections of the Act, including the reasonable and necessary criteria in Section 34 and the eligibility criteria in Sections 23-25.
The process is intended to be as informal as possible. Presumably, this is in attempt not to intimidate the public- despite the high stakes, unmovable deadlines and legal jargon. Kudos to them for trying.
Don't worry if you do not have the capacity or the knowledge to support people through the review process by yourself. There is a list of organisations Australia-wide who have been funded to support people through this huge process.
Is a review in the Participant’s best interest?
The last question is the trickiest, as it relies less on legislation and more on judgment. A review might not always help a Participant, particularly if it relates to the funded supports in their Plan. When a review is triggered, the whole Plan is up for review, not just the part the Participant is unhappy with. Therefore, the Participant could potentially end up worse off than they were before. In some cases, it will absolutely be worth the risk. However, in other instances, it may be wiser to wait for an annual review. Likewise, an unsuccessful NDIS applicant might find it easier to re-apply, particularly as this can sometimes be a quicker process.
Reviews can be tiresome, but without them it is simply survival of the most media friendly. Participants may be counting on you to help them through this nerve-racking process. Give them the best possible shot- know your Act.
This article is the second in a series on the NDIS Act. Click here read Sara's breakdown of the legislation explaining Reasonable & Necessary.
